But this scene involves whatsome now label as a heckler's veto. Major Strasser and the Nazis are Milo Yiannopoulos or Ann Coulter or Charles Murray; everyone else in the bar are angry campus liberals or SJWs; and the latter spoke so loudly over the former as to drown-out its speech, make it impossible to be heard, and cause them to stop speaking. If, as some say, this is a heckler's veto, the government could have stopped the house band from playing or, as happened in the film, shut down the forum (although only after collecting its winnings). And so we lose the turning-point moment that galvanized what everyone regards as the "good guys" in the story.

Mark Tushnet and Erwin Chemerinsky/Howard Gillman have argued that it may depend on the nature of the space. In an open space, the Nazis did not have a superseding right of access compared with the supporters of France, so they did not have a superseding right to speak and be heard. But othersinsist that government can stop one speaker from being so loud as to make it impossible for another to be heard--that this is disruption, not counter-speech. Perhaps the Allies in the bar should have allowed the Nazis to finish their song and then sung their own. Or they should have gone to another space. Or they should have listened to the ideas in the Nazi song and given them a chance to persuade.

I do not have the answer to this problem and I am still turning it over for a future article. But I like this scene because it illustrates the complexity of the balance.

Update:Lubet offers an interesting take in response to my original post. He hits one point that I have heard from several people on these issues--the Allies were not singing to drown out their rivals, but to inspire the audience with their own message and their is a difference between presenting your message, loudly, and presenting a message with the intent of drowning out. I do not think intent matters, because it is difficult to separate--inspiring the Allies in the bar required that their voices down out those of the Nazi--even if the Nazis do not stop singing, they could not be heard, which was the point.

Comments

Also, I would have thought that the unpersuasiveness of the "Gosh, we fought a war against Nazis" argument to be so self-evident as to prevent it from being made. We also fought two brutal wars against Commies (Korean, Vietnam) as well as various proxy wars and engaged in a prolonged nuclear stand-off with the red menace So do we get to ban the speech of Commies? How about their fellow travelers Socialists and Marxists?

Posted by: Curmudgeonly Ex-Clerk | Dec 11, 2017 7:15:00 AM

I think J.'s comment is odd. In general, the reason different amendments are treated differently is in no small part due to their differing language. The Fourth Amendment applies to "unreasonable" searches; anything that incorporates reasonableness into the equation is going to be flexible. The First and Second Amendments do not do so.

Posted by: Curmudgeonly Ex-Clerk | Dec 11, 2017 6:48:50 AM

But the middle ground that still needs a rule--and that I still have not figured out--is the invited speaker in the reserved space and the protesters on the quad. FIRE and others are calling that a heckler's veto. And although I still have not figured out where to place it, I believe the answer is more complicated than that.

Posted by: Howard Wasserman | Dec 10, 2017 11:08:24 PM

How many of the situations that FIRE reports on have to do with open quad events vs those that involve reserved rooms? My sense is that the latter vastly outweigh the former.

The problem on college campuses, inasmuch as you think there is one, is not competing groups of people trying to yell over each other. That's a football game. It's students that feel entitled to shout down speakers invited to speak by a student group that followed the rules and reserved space. Or in some even more egregious cases students that shout down professors lecturing in classes. More specifically the problem is overpaid administrators that are too feckless to do anything about the above.

Posted by: brad | Dec 10, 2017 12:44:56 PM

No one believes that "Equal Protection of the Laws" under the Fourteenth Amendment means absolute equal protection - we accept that laws have disproportionate impact on different groups of people, and unless the law distinguishes between people on the basis of a protected class, we only require the government to have a rational basis for laws that don't treat people equally, despite the text of the Constitution.

Yet, in the First Amendment context, we largely assume the right to free speech is absolute, and any burden on it has to pass strict scrutiny (or "exacting scrutiny" or whatever term the Court is using on any given day). I find this distinction fascinating. It occurs, though less so, in the 2nd Amendment context as well - there are many gun rights advocates who think the Second Amendment prohibits any type of regulation of guns, or at least requires the strictest scrutiny to be satisfied. But these same groups don't take similarly hard-lined approaches on "search and seizures" or "equal protection" or "due process."

Personally, I like the Casablanca example, because it really helps illustrate just how odious Nazis are. No one watches Casablanca and says "wow, those poor Nazis didn't get to sing their songs. If only those occupied French folks would just listen to their ideas, we'd all be better off!" Likewise, I think a restriction on Nazi speech in the US should be able to pass strict scrutiny. We were willing to fight a whole war to stop Nazi ideology from spreading, with hundreds of thousands of Americans dying. It's hard to reconcile a Constitution that lets us do that, but doesn't let us peacefully shut down a Nazi march in Skokie, Illinois. Obviously I'm far away from the Supreme Court (and mainstream liberal thought) on this one.

Posted by: J | Dec 9, 2017 2:41:28 PM

I'm surprised that nobody's mentioned the obvious power imbalance that permeates the scene—indeed, the whole movie.

The Germans were the ones really in charge, and if that hadn't been the case, Rick would most likely have told them to shut up. Thus, the Germans' seeming freedom to sing their song in Rick's Cafe was in reality an result of the coercion implicit in their status as agents of an illegitimate and oppressive occupation force. Indeed, even apart from Rick's rights as the owner of the nightclub, isn't it obvious that in the circumstances, the German soldiers had no moral entitlement to freedom of speech?

Howard writes: "I would argue that learning should not have anything to do with the free-speech analysis."

This isn't my area, so maybe I'm wrong that it does. But I would think that the concept of the marketplace of ideas is all about learning. Free speech protects expression, and expression is requires a message. Messages are heard and then tested, and the audience learns what is persuasive and what is not. If you're just trying to make so much noise that someone else can't be heard, the key issue isn't whether the 100db sound happens to be white noise or a reading the Federalist Papers; the issue is that you're trying to stop someone else from learning. Or so it seems to me.

Posted by: Orin Kerr | Dec 8, 2017 4:06:58 PM

Good call. I stand corrected.

Posted by: Howard Wasserman | Dec 8, 2017 2:42:05 PM

Howard, I feel obliged to point out that it wasn't Yvonne with the guitar. The lady with the guitar was "the lady with guitar." Yvonne, pictured in the YouTube still, was the woman Rick didn't call and who came in on the arm of a German officer.

How was Rick's Cafe an "open forum with no one speaker having priority"? It was a private club, after all, with a house band. Even the name was *Rick's* Cafe, which tells us a lot about who got to decide on the music. The house band was evidently on a break when the Nazis started singing, and then Rick told his band to go back to work. Laszlo asked the band to start playing, but nothing happened until Rick nodded in agreement.

If you are effectively the government in your classroom, why wasn't Rick effectively the government in his own club?

I suppose you may say that the Nazis use of the piano indicates the openness of the forum, but that would only be the case when the house band wasn't playing. Likewise, other people can speak in your classroom during the lunch hour, or between classes, but you have the sole right to the floor once class begins.

Posted by: Steve Lubet | Dec 8, 2017 2:07:27 PM

In the forum you describe, there probably is a first priority to one speaker and thus limits on counter-speech, based on the rules of the forum. The problem cases (and this has been the point in some of the things I liked to in the original post) arise when you have an open forum with no one speaker having priority. Which probably best describes Rick's, if we are going to treat it as some kind of forum.

Yes, students could stand outside in a public forum, subject perhaps to content-neutral limits on noise levels, sound-amplification equipment, and proximity to the building. (e.g., the "free speech zones" on our campus are beyond 50 feet from building entrances). I also think (although I have not given this enough through) that a university can protect my classroom against disruption to a greater extent than an invited Fed Soc or ACS presenter, because the classroom is more central to the university's mission (on Fish's theory of academic freedom and the university, it is the extent of the its mission--Post probably would agree).

Posted by: Howard Wasserman | Dec 8, 2017 1:19:46 PM

So the problem with my concept of free speech is that the speeches in question are actually free and open to the public? What we need to do to ensure a speech can actually be given is close them so that only a specific group can attend (say a club or class), charge an admission fee and sell tickets only to those actually interested in hearing the speech, or limit admission to them in some other fashion? Maybe I'm idiosyncratic, but that doesn't sound terribly free.

Maybe case law on public fora adequately addresses the following, but . . .

Why should a speech in which there is:

(1) a scheduled speaker or speakers, often brought to the university with university funds or else a private student's group's funds in whole or part;

(2) invited either by the university or with its permission and/or through its procedural framework for inviting speakers;

(3) speaking at a designated location on university grounds that doubtless had to be reserved via the administration

a public forum in the sense of others enjoying simultaneous speech rights there?

Why isn't the invited speaker "effectively, government speech" or something roughly equivalent, given the university's role in bringing it about? The university has given the speaker his platform, just as it has given you yours. (On different terms, of course.)

Switching gears . . . accepting the proposition that your lectures are entirely different and that "Students Against Wasserman" have no free-speech rights there, the grounds outside the building might be a public forum of sorts. Can SAW stand outside and make so much noise that your lectures cannot be heard? Is that free speech?

Posted by: Curmudgeonly Ex-Clerk | Dec 8, 2017 12:19:06 PM

As I said, I am still trying to work out where things should stand.

As for my lectures, my classroom is not a public forum of any kind. No one other than me has any free-speech rights there. And I am, effectively, government speech.

Posted by: Howard Wasserman | Dec 8, 2017 11:31:22 AM

How is a university to function on your view, Professor W., where speech is so free that nobody can give one?

And what separates your lectures from those of invited speakers?

Posted by: Curmudgeonly Ex-Clerk | Dec 8, 2017 10:52:16 AM

I would argue that "learning" should not have anything to do with the free-speech analysis. Singing Die Wacht am Rhein enjoys the same protection as Charles Murray delivering an academic lecture.

I like this scene from the movie because it demonstrates the cacaphony of free speech.

The term heckler's veto historically meant the government shutting down a speaker on threat of violence from unwilling listeners; the government involvement was necessary. The term has been extended to meet the situation roughly shown here of one speaker drowning out the other. My point in a lot of what I have been writing here of late is that this use is inappropriate, at least in many situations roughly analogous to the one in the film

Posted by: Howard Wasserman | Dec 8, 2017 6:23:17 AM

Howard, it sounds like the media stories and advocate commentary are using the term in the usual way: To signal when a group is taking the anti-learning position of trying to stop others from learning through hearing speech the group doesn't want them to learn from. They're veto-ing the learning by heckling -- that is, interrupting the speaker. My point is that I don't see what that has to do with the scene in Casablanca, in which no one was trying to learn anything and no one was trying to interfere with another's learning.

Posted by: Orin Kerr | Dec 7, 2017 11:04:51 PM

A lot of the media stories and advocate commentary (scholarly and otherwise) about campus speech conflicts have used the term to describe situations in which counter-speakers overwhelm original speakers. FIRE has used the term a lot to describe campus-speech conflicts in some of its advocacy, without differentiating the "game of making noise" from rushing the stage of an auditorium to seize a microphone.

Posted by: Howard Wasserman | Dec 7, 2017 10:51:45 PM

Howard, thanks for the reply. This isn't my area, so I don't know who has called scenes like the one in Casablanca a heckler's veto. It strikes me as more like a football game in which the two sides each try to make more noise to cheer on their team and feel like they are winning a noise competition that stands in for the actual game. No message is being stopped from being communicated; it's just a game of making noise.

Posted by: Orin Kerr | Dec 7, 2017 10:45:59 PM

Orin: The point is that many people describe these sorts of free-for-alls as a heckler's veto by the late-arriving speaker. I do not believe it is and did not mean to suggest it is--I have used this scene to illustrate how counter-speech should work under the First Amendment.

Posted by: Howard Wasserman | Dec 7, 2017 10:24:18 PM

Oh, and I suppose the assumption I'm making is that it's an important part of a university's role for speakers to be invited to speak so that audience members can learn by hearing them. Maybe they will learn by agreeing with the speaker, and maybe they will learn by critiquing the speaker and realizing how wrong the speaker is. Either way, exposure to the speaker that the audience wants to hear triggers an important learning process. The problem with heckler's veto is that it is designed to (and sometimes succeeds in) interfere with that learning process by making sure the audience can't hear the speech that triggers the learning. This doesn't raise particularly complex questions, at least in my view, because it boils down to the pro-learning side ("hear the speech you want to hear and learn from hearing it") and the anti-learning side ("don't hear the speech you want to hear so you can't learn from hearing it").

Posted by: Orin Kerr | Dec 7, 2017 10:13:35 PM

I don't follow the argument.

I haven't seen Casablanca in a while, but just watching the clip, there was a band and a piano at the bar, and the point of the band and the piano were to make music that different people in the bar wanted to hear. Different people in the bar wanted to hear different music. One group wanted to hear and sing one song, and another group wanted to hear and sing another song. So they each played and sang their songs loudly.

Maybe there is a some way in which that is something like a university inviting a speaker in which a group stops the invited speaker from being heard -- by stopping the other audience members from hearing the speech. I guess they both involve loud noises. But beyond that, I have a hard time finding any similarities, much less seeing them as the same.

Posted by: Orin Kerr | Dec 7, 2017 10:05:17 PM

Let me put it this way: Everybody comes to Rick's -- but not because they want to hear Nazis singing.

Posted by: Steve Lubet | Dec 7, 2017 8:35:14 PM

This is fun, because there is a lot to unpack here. We kind of need to know the rules of the place in terms of music. There was a house band, a house piano player, Yvonne with her guitar, and it appeared to be ok for patrons to sit at the piano and sing. So who had priority? Also, who was the government here? Strasser did not possess (or at least assert) authority to shut down the bar; that power was with Renault, as the representative of the Vichy government.

Fun stuff.

Posted by: Howard Wasserman | Dec 7, 2017 8:14:02 PM

Well, the Nazis could still be heard by everyone who wanted to listen to them -- meaning the seven soldiers standing around the piano, who could still hear each other perfectly well.

The refugees in Rick's Café were a captive audience, in a pretty literal sense of the word. Laszlo just gave them a way to escape.

Laszlo, after all, was leading the house band with Rick's approval. If Yiannopoulos or Coulter walked into a night club and started lecturing loudly, it wouldn't be a heckler's veto for the billed act to play loud enough to be heard.